Court Backs Immigrants in Deportation

TIMES LEGAL AFFAIRS WRITER

In a decision that could affect thousands of people, a federal appeals court ruled Tuesday that immigrants have a constitutional right to challenge a deportation order in court.

The 3-0 ruling by the U.S. 9th Circuit Court of Appeals in San Francisco is the first decision by a federal appellate court saying that immigrants had such a right, since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act in 1996 threw the issue into question.

Under that statute, Congress attempted, among other things, to dramatically restrict the ability of federal courts to review actions by the Immigration and Naturalization Service. The congressional statute was intended to curb allegedly frivolous appeals and make it easier to deport criminals.

Opponents of the bill contended that it was a radical "court stripping" measure. There are suits on the issue pending throughout the country.

Tuesday's decision "is a very significant ruling," said Columbia University law professor Gerald Neuman, leader of a group of 90 law professors who have contended that the government was attempting to improperly strip the federal courts of the right to review INS actions.

Although the ruling applies specifically to legal resident aliens, the same principle could be applied to illegal immigrants, whose judicial review of deportation also was curtailed by the 1996 law.

"The 9th Circuit's rejection of the INS position . . . means federal courts will continue to be able to review decisions by the INS and the Bureau of Immigration Appeals before noncitizens can be deported from the U.S.," said San Francisco attorney Marc Van Der Hout of the National Lawyers Guild, part of the team of attorneys who challenged the government's position in the case.

That is very important, Van Der Hout said, because in the past, federal courts have frequently ruled that the INS or the BIA had violated the law in deportation matters.

"The court has found that the U.S. Constitution does not permit the attorney general or the INS to be judge, jury and prosecutor in a deportation case," added Lucas Guttentag, who heads the national immigrant rights project of the American Civil Liberties Union.

A Justice Department spokesman said that the agency had not completed its review of the decision and therefore could not make an immediate comment.

Guttentag said the decision also was noteworthy because it came in a case filed by one in a particularly disfavored class of individuals--an immigrant who had been convicted of a crime.

Daniel Magana-Pizano, a 25-year-old Mexican national, was convicted of a misdemeanor drug charge--being under the influence of cocaine and methamphetamine--in California in 1995 and thus became subject to deportation under federal law. He is currently incarcerated in a federal detention center for immigrants 60 miles south of Phoenix.

Magana conceded that he was subject to deportation but contended that he had a right to apply for a discretionary waiver of deportation under the Immigration and Nationality Act.

Unbeknownst to Magana, however, Congress had passed the Anti-Terrrorism and Effective Death Penalty Act of 1996, which included a provision enabling the INS to eliminate discretionary relief for aliens convicted of most drug-related crimes, including the one committed by Magana.

The INS filed a motion seeking to block Magana's application for relief. A federal immigration judge agreed with the agency's position and ordered Magana deported. The Bureau of Immigration of Appeals sustained that decision.

Magana then filed two petitions in federal court in Phoenix--one seeking direct review of the Bureau of Immigration Appeals ruling and a writ of habeas corpus--the historic method of challenging allegedly unlawful detention by the executive branch of government.

A federal trial judge in Phoenix dismissed both of Magana's petitions, setting the stage for the appeal that led to Tuesday's ruling by 9th Circuit Judges Sidney R. Thomas of San Francisco, Alfred Goodwin of Pasadena and U.S. District Judge Dean Pregerson of Los Angeles, sitting on special assignment.

The 9th Circuit agreed with the lower court that Magana no longer had a right to direct appeal because of a provision of the 1996 anti-terrorism law. However, the appellate judges ruled that if Magana were not allowed to file a habeas corpus petition it would violate the Constitution because he had no other avenue to contest his deportation.

The court ruled that the 1996 immigration reform law clearly violated a provision of the U.S. Constitution, known as "The Suspension Clause," which provides that: "the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it." The judges rejected the INS' contention that a person in Magana's situation was entitled to raise such a challenge only if he could show there was a "fundamental miscarriage of justice."

The 9th Circuit sent the case back to the trial judge in Phoenix and directed him to review Atty. Gen. Janet Reno's decision that the 1996 law applied retroactively to Magana. Depending on how the judge rules in that matter, there may be further appeals to the 9th Circuit.

If Magana prevails in that process, he then would be entitled to argue to an immigration court that he is entitled to a discretionary waiver of deportation.

Last year, in a related case, the 9th Circuit rejected the Justice Department's contention that it should dismiss a selective prosecution case filed against the government by a group of immigrants, known as the "L.A. 8," who have been fighting deportation since 1987. The department contended that such suits were retroactively barred by the 1996 immigration reform law.

In that decision, the appeals court ruled that the act does not prohibit constitutional challenges to immigration-related actions by the government. The U.S. Supreme Court granted review in that case and oral argument has been scheduled for Nov. 4.

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